Determine Whether a Social Media Post Is Protected by the NLRA

Key Points

  • Employers must be aware that an employee's social media post (Facebook, Twitter) may constitute protected activity under the National Labor Relations Act. Even though the employee's post may be seen by all "friends" including non co-workers, the post may constitute protected activity if it addresses a term or aspect of employment and is read by fellow co-workers on the social media site.
  • If an employer permits employees to use social media sites on employer equipment and on employee property, it is likely the employer may not prohibit employees from using such sites to send pro-union messages.
  • Employers may argue against the protected aspect of the social media post by showing that it was malicious, reckless, false or an individual complaint rather than a complaint on behalf of fellow co-workers. As this is an ever-evolving issue, employers are advised to seek counsel as every post will be unique and will require an appropriate response.

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